DATE: 20060512

DOCKET: C44896

COURT OF APPEAL FOR ONTARIO

RE:

147619 CANADA INC. (Respondent) – and – MARCEL CHARTRAND (Appellant)

BEFORE:

SHARPE, BLAIR and ROULEAU JJ.A.

COUNSEL:

Pierre Champagne

for the appellant

Chris Moore

for the respondent

HEARD & RELEASED ORALLY:

May 9, 2006

On appeal from the judgment of Justice A. Forget of the Superior Court of Justice dated February 2, 2006.

E N D O R S E M E N T

[1] We agree with the appellant that the three-part test as reformulated in Antipas v. Coroneos (1988), 1988 10348 (ON SC), 26 C.P.C. (2d) 63 as affirmed by this court in Szelazek Investments Ltd. v. Orzech (1996), 44 C.P.C. (3d) 102 applies.

[2] On its face, the proposed amendment raises a triable issue. The appellant swears that it was only when he read the material filed by the plaintiff in support of the motion for summary judgment that he realised that the plaintiff had not advanced the funds under the mortgage at issue. In view of the complex dealings between these parties, and the way in which the plaintiff advanced funds under the various mortgages, the proposed amendment did raise a triable issue for purposes of rule 51.05. Whether or not the appellant’s evidence is sufficient to avoid the plaintiff’s motion for summary judgment remains to be seen. However, that issue should be resolved on the basis of the amended pleadings and a proper record. The motion judge in effect collapsed the motion to amend and the motion for summary judgment into one. In our view, he should have allowed the appellant to amend his pleadings and determined the summary judgment motion on the basis of those amended pleadings and the proper record.

[3] We agree with the appellant that the motion judge appears to have held the appellant to the pre-Antipas standard with respect to the second branch namely, that the admission was inadvertent or resulted from wrong instructions rather that the post-Antipas test namely, has the applicant furnished a reasonable explanation for the change of position? In our view, the explanation offered by the appellant meets the Antipas test.

[4] Finally, we agree with the appellant that with respect to the third branch namely, prejudice, the motion judge focussed on prejudice to the appellant rather than prejudice to the respondent. We see no prejudice here that could not be compensated by interest and costs.

[5] Accordingly, we would allow the appeal and substitute an order permitting the appellant to amend the statement of defence.

[6] Costs here and below fixed at $10,000 inclusive of disbursement and GST - liability for which shall be determined by the judge determining the result in this action.

“Robert J. Sharpe J.A.”

“R.A. Blair J.A.”

“Paul S. Rouleau J.A.”